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Ethics, possible investigation unclear over trooper allegation

By COURTNEY HESSLER

The Herald-Dispatch

HUNTINGTON, W.Va. — Neither the defense attorney nor the prosecutor’s office shared with West Virginia State Police information they had indicating a state trooper had a sexual relationship with a witness in an ongoing Cabell County murder case investigated by that trooper.

Both attorneys – Cabell County Prosecutor Sean “Corky” Hammers and defense attorney Abe Saad – said they do not have an obligation to inform the State Police directly of the allegations.

On Wednesday, The Herald-Dispatch reported that evidence gathered by Saad Dixon Law Office indicated a West Virginia State Police trooper who investigated the murder had the sexual relationship with the witness. The documents included text messages, photos and a recorded phone call involving the trooper and witness that occurred between January and March 2017, after the slaying had taken place.

Kendra Huard Fershee, associate dean for academic affairs at the West Virginia University College of Law, said the West Virginia Rules of Professional Conduct do not clearly answer whether an ethical standard was breached by Saad’s office or the prosecutor’s office by not forwarding a complaint to State Police about the trooper’s alleged behavior.

“The lawyer ethics here might not require any kind of divulging of the information, but that may just be a failing of the rules (saying) that they are not specific enough,” said Fershee, who is not connected to the murder case. “But instead, the place where it could be an ethical violation is whatever rules the state troopers have to follow with respect to how they engage in investigation.”

Hammers confirmed Wednesday that Saad had turned over the evidence his office had obtained about the trooper to the prosecutor’s office. Hammers declined to speak further on the specific evidence, citing the ongoing murder case that could still possibly go to trial.

The state’s Rules of Professional Conduct state a lawyer “who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the (court).”

The evidence was turned over as part of the criminal proceedings, but was not detailed in open court.

Hammers said he did not feel he had an obligation to make a formal complaint with the West Virginia State Police. Since the department now has knowledge of the case, it can conduct an investigation if police officials feel it is necessary, he said.

“I’m not sure when or how they learned of this information,” he said in a text message to The Herald-Dispatch on Wednesday. “Certainly (Wednesday’s) article would have alerted them of the situation.”

On Tuesday, Hammers declined to comment on the allegations against the trooper.

Saad said he had consulted with an uninvolved judge and a seasoned attorney regarding his ethical duties and cited duties of honesty to the court outlined in rules of professional conduct.  He said by turning over the information to the state, who is represented by prosecutors, and the court, he had performed his ethical duty.

Saad said, like the prosecutor’s office, the West Virginia State Police fall under the umbrella of the state, so the knowledge should have branched to that department as well.

“For example, in a civil case, if the company I was suing had employees doing something in the middle of the case to destroy evidence or tainting witnesses, hypothetically, I am not allowed to report it to the company,” he wrote. “I must report it to the court and to the company’s counsel.”

The case remains ongoing in Cabell County Circuit Court. Saad said after he turned the information over to prosecutors, he had been offered a plea deal that included a less severe offense than originally offered, but he was unsure if the change was related to the information he had shared with the prosecutor about the trooper.

While neither Saad nor Hammers would say whether the offer of a lesser charge was directly tied to that evidence, Fershee said it was still a bad look.

“That exchange seems possibly problematic,” she said. “Because you have a situation where it’s like, ‘Well, our witness might be tainted, so I will offer you a lower charge so you can plead out, because we think that will be more attractive to you as a defendant than taking your chances at trial.'”

Fershee said even if there were no obligation to tell WVSP about the accusations, the situation could still affect the case.

The investigation into the trooper by Saad Dixon Law Office, located in Huntington, started after its attorneys learned an alleged anonymous tip was made to the West Virginia State Police headquarters in Charleston.

The evidence gathered included a signed statement by the witness stating she engaged in sexual intercourse with the trooper on at least one occasion at a Cabell County church.

She wrote that the pair communicated through text messages, and she provided several messages made from January to March 2017. After the witness signed the complaint, the trooper contacted her via a phone call that she recorded and turned over to the investigator.

In that conversation, the trooper confronted her about the anonymous complaint made to the WVSP.

“They just said some revealing things that only certain people know about what happened,” he said. “Or they might be grasping, but they called headquarters.”

According to state code, the State Police superintendent could suspend, demote or discharge a West Virginia state trooper for several offenses, including immorality, neglect of duty, abuse of authority or interference with the lawful right of any person.

On Tuesday, a representative of the WVSP said he had no knowledge of any formal complaints against the trooper. On Wednesday, Lt. Michael Baylous said the department had been looking into the allegations Tuesday and that a further statement would not be made Wednesday.

The State Police representative said Tuesday that if a complaint is made, the area’s assigned internal affairs investigator would look into the claims to determine if action should be taken. An investigation is not currently underway, but could be if a formal complaint is made, he said.

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